[2013] KEHC 5743 (KLR)
The court held that leave is not required to institute contempt proceedings where the order allegedly disobeyed is an injunction issued under the former Order 39 (now Order 40) of the Civil Procedure Rules. However, since the present application was only for leave and no sufficient reason was advanced by the...
Source-derived case information.
- Citation
- [2013] KEHC 5743 (KLR)
- Parties
- Applicant: Michael Nasimolo Muyelele; Respondent: Reba Kibaba; Respondent: David Waliaula
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 84 of 2013
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Institute Contempt Proceedings
- Outcome
- application allowed
- Legal Topics
- Contempt of Court, Leave to Institute Proceedings, Injunctive Orders, Service of Court Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Michael Nasimolo Muyelele
Applicant
Reba Kibaba
Respondent
David Waliaula
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Institute Contempt Proceedings
Legal Issues
- 1 Whether leave of court is required to institute contempt proceedings for breach of an injunctive order issued under Order 39 (now Order 40) of the Civil Procedure Rules.
- 2 Whether the applicant has demonstrated sufficient grounds for the grant of leave to commence contempt proceedings.
- 3 Whether the application for leave should be made in the court that issued the original order.
Ratio Decidendi
The court held that leave is not required to institute contempt proceedings where the order allegedly disobeyed is an injunction issued under the former Order 39 (now Order 40) of the Civil Procedure Rules. However, since the present application was only for leave and no sufficient reason was advanced by the respondent to deny such leave, the court granted the application. The court further noted that the substantive contempt proceedings should be commenced in the court that issued the original order. The authorities cited by the respondent were found to be irrelevant at this stage as they related to substantive contempt applications rather than applications for leave.
Court Disposition
application allowed
Orders
- Leave is granted to the applicant to institute contempt proceedings against the respondent.
- The applicant is to file the application for contempt within 14 days.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
MISC. APPLICATION NO. 84 OF 2013
MICHAEL NASIMOLO MUYELELE..............……....………....……..APPLICANT
VERSUS
REBA KIBABA....………..............…………….…..….......….1ST RESPONDENT
DAVID WALIAULA........................................................ 2ND RESPONDENT
RULING
The applicant has filed the notice of motion dated 27th March 2013. He seeks court's leave to apply for contempt proceedings against the Respondent for disobeying the order dated 13th February 2013 granting temporary stay of construction. And if leave is granted, the application for contempt be filed within 14 days.
The application is supported by the affidavit of Michael Nasimoli sworn on 28th March 2013 and his supplementary affidavit sworn on 14th May 2013.
In his affidavit he avers the Respondent was served with the order on 18th February 2013 and that he never stopped construction. In the supplementary affidavit he says the Respondent applied to set aside the orders of 13th February 2013 and he never raised the issue of title to the suit land.
The application is opposed. The Respondent has filed a replying affidavit where he says he has not been served with any order stopping construction on L.R. No. S. Malakisi/N & C Namwela/573. The order served on him did not refer to L.R. No. S. Malakisi/N & C Namwela/573.
I would like to point out that the order complained of arose from Bungoma CMCC No. 10 of 2011. I do not know the reason why the applicant has chosen to apply for leave in the higher court instead of the court which issued the order. The pleadings from which this order arose were also not annexed to the the present application.
In several decisions of The High Court of Kenya, it has been held that if the contempt emanates from injunctions issued under Order 39 Rule 2 (now Order 40 Rule 3(1)), then a party does not require leave to commence contempt proceedings.This was the holding by Justice Ransley in Fidelity Shield Commercial Bank Ltd. Vs. Shamsherali K. Kurji & another, Nbi HCCC No. 1276 of 2001. Similarly Justice V. Juma (as he then was) emphasized in the case of John Sachia Ndirangu Vs. Peter Ngang'a & another, Nbi HCCC No. 3697 of 1995that you do not require leave to institute contempt proceedings under Order 39.
I have read through the case law cited by the Respondent i.e Godfrey Kimani Vs. Thomas Wambura [2012] e KLR, Joseph Peter Gichoya vs. Patrick D. Ikiefwe [2006] e KLR and HFCK S. Ngige Kitson Mondo [2006] e KLR all relate to the application for contempt. However the instant application is for leave to institute contempt proceedings. The authorities are therefore not relevant at this stage of the proceedings.
Having explained that leave of court is not necessary if the order disobeyed emanated from the former Order 39 (now Order 40). And taking into account that this is merely an application for leave, there is no reason given to this court by the respondent why the same should not be granted. I therefore proceed to allow it. The Respondent will have opportunity to contest the application for contempt once proceedings for the same is instituled. Not forgetting to remind the applicant to commence the contempt proceedings in the court whose order has been disobeyed.The application is allowed with costs in the cause.
RULING DATED, SIGNED, READ AND DELIVERED in open court this 20th day of June 2013.
A. OMOLLO
JUDGE.